With a new political alignment on both ends of Pennsylvania Avenue, the political class in Washington has understandably focused on the robust domestic agenda under consideration by the incoming Trump administration and Republican-controlled Congress.
Using a combination of executive actions and legislation, a Republican trifecta is proposing to pass major tax reform, increase domestic energy production, strengthen border security and cut government spending. Factoring in the confirmation of nominees, and we can expect a dizzying first 100 days and beyond at both ends of Pennsylvania Avenue.
The Republican majorities in both houses of Congress are very thin. In the House, Republicans won 220 seats. That number will drop to 217 after Reps. Mike Waltz (R-Fla.) and Elise Stefanik (R-N.Y.) resign from Congress to join the incoming Trump administration, given that former Rep. Matt Gaetz (R-Fla.) resigned in advance of taking his seat.
In the Senate, Republicans won 53 seats, well short of a filibuster-proof majority. Republicans will rely upon the procedural maneuver known as budget reconciliation in order to pass the most consequential aspects of their legislative agenda.
Thin margins in one or both houses of Congress usually result in a proliferation of oversight and investigations from the Congress. In our current age of extreme partisanship, it has become increasingly difficult to pass significant legislation on a bipartisan basis.
Both major political parties find legislative compromise to be risky. Ideological purity, the pull of the next cable news appearance, and the fear of electoral primaries are some of the key factors contributing to this gridlock. In this political environment, the less time that lawmakers spend legislating productively, the more time they tend to spend exercising their investigative power.
The Constitution does not explicitly give the legislative branch an investigative role, but lawmakers have viewed this power as implied in the text of the Constitution. Fundamentally, Congress has understood the basic framework of checks and balances between the three branches of government as granting a certain degree of leeway for the legislative branch to ensure that both the executive branch and the private sector are functioning properly.
The congressional investigative power is not unlimited. The U.S. Supreme Court has ruled consistently that the congressional investigative power must be tied to a legitimate “legislative purpose.” However, the Supreme Court has not clearly defined what constitutes the legitimate exercise of a legislative purpose.
In broad strokes, the Supreme Court has given congressional committees wide deference when investigating governmental activity, while affording them less deference when investigating private activity. In the Trump v. Mazars decision of 2020, the Supreme Court established a balancing test for determining how far the investigative power extends into the domain of the presidency.
Congress is a fact-finding body. It does not carry out law enforcement functions. When Congress believes that the law has been violated, it may refer such findings to the Department of Justice. The rules of the House and Senate allocate far-reaching investigative powers, including the use of enforceable subpoenas, to a network of congressional committees with jurisdiction over every stretch of the U.S. economy. The past two years saw the regular use of subpoenas by Republican-led House committees, a trend we expect to continue for the next two years.
When properly resourced, congressional investigations have achieved major results, particularly in recent decades. Examples range from the scrutiny of Big Tobacco, the uncovering of the Enron scandal, steroid use in Major League Baseball, the high cost of prescription drugs, and most recently, the occurrence of antisemitism on college campuses.
What have set these investigations apart are a number of elements, including bipartisanship and sustained focus over time. The most effective congressional investigations activity occurs on a bipartisan basis. Like the deficit on the legislative side of Capitol Hill, bipartisan investigations are increasingly rare.
As former senior House Republican leadership and committee aides, we have been talking to our former colleagues about their plans for the 119th Congress. We expect the investigative agenda for House and Senate Republicans to reprise areas from this past Congress. In particular, antisemitism on campus; the impact of diversity, equity and inclusion considerations on corporate America’s decision-making; the origins of COVID-19; content moderation by tech companies; the use of artificial intelligence tools in the economy; and U.S. outbound capital flows to China.
Even as legislative developments dominate the headlines, watch for the equally powerful impact of congressional inquiries. From the resignations of college presidents to market-moving events for publicly traded companies, the stakes are extremely high. In 2025, general counsels are wise to focus on their exposure to congressional inquiries as one more factor to consider alongside tariffs and tax reform.
Aaron Cutler, a partner, and Ari Fridman, a counsel, are congressional investigations practitioners at the law firm of Hogan Lovells.
